There’s been a lot of coverage in the news about the protests in China over Japan’s attempt to sell the Senkaku Islands (as they are called in Japan)/ Diaoyu Islands (as they are called in China). Both countries claim sovereignty over the islands, and protesters in China claim that Japan’s attempt to buy them from private owners violates China’s claim over them.

Much of the coverage I saw last week (for example: The New York Times 9/19 and the BBC) was focused primarily on the nature of the protests. Not only were there demonstrations outside the Japanese embassy, there was “extensive rioting and vandalism” last weekend (The New York Times 9/19), and Japanese car manufacturers halted operations in China for a few days. Also, interestingly, evidently the Chinese government did not immediately shut down these protests (The New York Times 9/17).

Most commentators refrained from speculating on where sovereignty over the islands actually lies, instead reporting that both countries claim it - China on the grounds that they controlled the islands “since ancient times” and that the islands should have been returned to them after World War II (WWII) and Japan because of their control of them more recently. I thought I’d dig a bit deeper and see if I could find a clearer answer here. Actually, I thought that if we looked back far enough or with a neat property/ international law framework in mind, perhaps there would be an clear legal answer - an answer which would probably be complicated by politics or time - but an answer nonetheless. ..

As it turns out, the answer is not so clear, in part because politics and time are part of the determination of sovereignty in the case of claims over unoccupied land.

Luckily, there are a few journal articles which help explain the competing claims. In particular, an article in 1996 by the late Professor Hungdah Chiu of the University of Maryland School of Law explains the Chinese claims in detail, and I encourage readers to take a look in order to learn more (citation below).

As detailed by Chiu, there is plenty of historical evidence China controlled the islands from at least the 15thcentury - hence the assertion in the articles above that the islands are theirs “since ancient times” – and that Japan was aware of this claim. The press articles above and others seemed to gloss over the ‘ancient times’ assertion as a kind of awkwardly articulated legal claim, separate from the claim that post-WWII treaties should have been interpreted differently. A closer look at the history and China’s legal assertions prior to this event, though, show that these claims are hardly inseparable and in fact are stronger and more coherent when read together. China is basically claiming that the islands were always theirs, that Japan knew this and stole them after the Sino-Japanese War in 1895 and that Japan’s subsequent claim to sovereignty over them is illegal. As a result, China claims that these islands should have been returned to them under the post-WWII treaties in 1945. In support of this claim, China has actively protested alternate (Japanese or other) legal interpretations of the international law regarding international boundaries extending from their continental shelf and the ‘return’ of these islands to Japan in 1972 (as a result of post-WWII treaties).

Japan’s claims rest not only on a different interpretation of the post-WWII settlement, but relatedly on international law which recognizes sovereignty of uninhabited land (terra nullius) through occupation. According to Japan, an application of this law would necessarily find Japanese sovereignty over the islands because Japan surveyed them, found no trace of Chinese occupation , and then took control of them in 1895. Japan’s account of their survey and investigation in 1895 is disputed by (China and) Han-Yi Shaw, a Taiwanese scholar who recently wrote an article on Nicholas Kristof’s blog (citation below) . If Japan had in fact gained control over these islands terra nullius in 1895, then the islands wouldn’t be part of the land that required to be returned to China after WWII (Ramos-Mrosovsky, citation below).

So, the legal situation is unclear, in part because of the time and politics involved. (After reading through these materials, I don’t fault the press for glossing over the finer points of actual sovereignty.) What is actually stake? Not just uninhabited islands in the ocean and diplomatic relations - evidently in 1969 a UN Committee with members from Taiwan, Korea, the Philippines and assistance from the US concluded that the area might contain vast reserves of oil and gas. On that note, Japan also claims that China didn’t dispute their sovereignty over these islands until the 1970s, after the oil was (maybe) discovered. This part was really interesting. Could China’s “motive” be used to discredit them (legally or diplomatically)? Also, on the time factor, under the customary international law of prescription, “a state that fails to contest other states' assertions of sovereignty over its territory can lose its rights for failure to insist upon them” (Ramos-Mrosovsky, citation below). However, the law isn’t clear as to how much time must pass in order for the invader to claim sovereignty. China’s repeated public assertions that they didn’t recognize Japanese sovereignty would of course cut against this claim; but if in fact they didn’t protest until the 1970s, then perhaps they waited too long? In any case, it looks like Japan is setting up an argument for their sovereignty on several (perhaps cloudy) grounds of international law, should this dispute end up in an international court (for more on this, take a look at their Ministry of Foreign Affairs on this subject, website below).

Thank you to PropertyProfs Blog for having me this next month. As Stephen mentioned last week, I’m currently teaching Property at Southwestern Law School. Before this Fall, I was at the Jindal Global Law School in India. Much of my research has focused on property theory and law, both in India and the US. I'll use this month to post on international property developments, property in pop culture and the news, and teaching Property as a first year course. I welcome comments and conversations in response to any of my posts!